Motion for Reconsideration (Judge Nancy Zeltzer)

Motion for Reconsideration

Moving Party: Plaintiffs John and Leslee Sarno

Responding Party: Defendant Kaiser Foundation Health Plan, Inc.


The motion for reconsideration by Plaintiffs John and Leslee Sarno (“Plaintiffs”) regarding the Court’s 9/15/21 order granting summary judgment in favor of Defendant Kaiser Foundation Health Plan, Inc. (“Kaiser”) is DENIED.

Plaintiffs move for reconsideration on the grounds that Kaiser failed to properly serve its motion for summary judgment (“MSJ”) on Defendants Jeffrey Berganza, Abe Hayes, and White Rabbits Social Club.

Code of Civil Procedure section 1008(a) provides,

“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Section 1008(e) provides,

“(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

“According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689, holds:

“We also conclude the amendment’s reference to ‘new or different’ facts did not make the section’s prerequisites less restrictive. Garcia’s argument, if accepted, would effectively eviscerate the threshold showing of diligence which has long required an ‘explanation’ of why the ‘newly discovered’ matter was not presented earlier.”

Here, Plaintiffs have not demonstrated the existence of “new or different facts, circumstances, or law” justifying reconsideration under section 1008. Plaintiffs contend that reconsideration is proper because of a subsequent order in this case on 9/22/21, in which the Court continued Plaintiffs’ motion for protective order based on concerns about sufficiency of electronic service of the motion on self-represented parties. After continuing the hearing on Plaintiffs’ motion and reviewing the supplemental declaration of Plaintiffs’ counsel which stated the self-represented Defendants had agreed to electronic service, the Court granted Plaintiffs’ motion for protective order on 9/29/21.

The Court’s subsequent orders regarding Plaintiffs’ motion for protective order do not constitute “new or different facts, circumstances, or law” under section 1008. Kaiser filed its proof of service of the MSJ on 5/12/21. Plaintiffs had the opportunity to raise objections regarding service of the MSJ in their opposition and failed to do so. Plaintiffs’ failure to diligently raise a legal argument is not grounds for reconsideration. (See Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1199.)

Moreover, Plaintiffs have not shown they were prejudiced by any defect in Kaiser’s service of its MSJ on Co-Defendants. (See Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318 [“Any error by the court in denying their motion for lack of new facts is not prejudicial and does not warrant reversal.”]) In opposition, Kaiser submits documentation of service on Defendants Hayes, Berganza, and the White Rabbits Social Club. (Opposition, Exhibits A and B.)

However, even assuming Kaiser failed to properly serve its MSJ on these Co-Defendants, Kaiser properly served Plaintiffs with the MSJ, which sought summary judgment or adjudication of Plaintiffs’ complaint against Kaiser. Plaintiffs filed an opposition to Kaiser’s MSJ, and Plaintiffs do not contend they were precluded from opposing Kaiser’s MSJ due to inadequate service on Co-Defendants. Plaintiffs have not shown that inadequate service of Kaiser’s MSJ on Defendants Hayes, Berganza, and the White Rabbits Social Club changed the outcome.

Therefore, the motion for reconsideration is denied.